Warrants Essay

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The Fourth Amendment to the U.S. Constitution states that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment protects citizens from unreasonable searches and seizures. The amendment and subsequent judicial decisions interpreting it provide prerequisites for search warrants and arrest warrants.

In general, warrants are legal documents authorizing law enforcement  personnel  to take some form of action. The most common types of warrants are search warrants and arrest warrants. Search warrants allow law enforcement to search a person’s residence or business. Arrest warrants permit law enforcement to take an individual into custody for the commission of a crime. Both search warrants and arrest warrants must be supported by an affidavit or sworn statement of probable cause. In both instances, warrants will be issued only if a neutral and detached third party, typically a judge or magistrate, has determined that probable cause exists. Though the law favors the use of warrants, there are several factual scenarios in which law enforcement can conduct warrantless searches and arrests.

Over time, warrants have been the subject of considerable controversy among  legal scholars and  commentators. Some argue  that  the text of the  Fourth  Amendment  suggests  that  any search or arrest requires a warrant. Opponents argue  that  the Fourth  Amendment  authorizes any search, with or without a warrant, so long as the search or arrest is not unreasonable. The U.S. Supreme Court has done little to quell this debate. Fourth Amendment jurisprudence fluctuates between mandating a warrant and expressing little concern that a search or arrest was made without a warrant.

Probable Cause

In the context of warrants, probable cause exists when a law enforcement officer has personal knowledge of facts or circumstances—supported by reasonably trustworthy information—that would assure a person of reasonable caution that a specific item will be found in a place that is subject to a search or an offense has been committed by the person who is subject to arrest. Probable cause is an objective concept.  Law enforcement officials’ subjective beliefs with regard to arrests and searches play no role in a probable cause analysis.

In general, two types of information support the affidavit or oath of probable cause provided by law enforcement: direct information and hearsay information. Direct information is information about which law enforcement officials have direct knowledge through their own personal experiences. Hearsay information is information provided to a law enforcement officer by a third party or informant. Though  both will support a finding of probable cause in certain circumstances,  hearsay  information must  meet additional criteria.

In Aguilar v. Texas (1964), the Supreme Court first outlined a test used to determine the reliability of hearsay information. The court later clarified this test in Spinelli v. United States (1969). This two-part test requires  that  an informant have a basis of knowledge for the information provided and that the information provided is true. The basis of knowledge prong of the Aguilar-Spinelli test is satisfied if law enforcement officials show that the informant’s information is the result of direct firsthand experience or is of sufficient detail that it is unlikely to be false. The veracity or truth of the information prong of the Aguilar-Spinelli test is satisfied if the informant has been truthful in the past or the information provided is likely true given the details of the situation. Under Aguilar-Spinelli, law enforcement officials may be able to establish probable cause without satisfying the two-prong test by corroborating or proving some facet of the information given by a third party.

In Illinois v. Gates (1983), the Supreme Court enunciated a new test for the reliability of hearsay evidence, holding that hearsay information supports a finding of probable cause if that information is reliable given the “totality of the circumstances.” Under the totality of circumstances test announced in Gates, a magistrate is charged with performing “a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant’s tip.” Though  the totality  of circumstances test displaced the Aguilar-Spinelli test, the two prongs of Aguilar-Spinelli are factors considered “highly relevant” to a totality of circumstances analysis. Unlike the Aguilar-Spinelli test, the totality of circumstances test will support a finding of reliability in the absence of satisfying one prong of the Aguilar-Spinelli test if other factors suggest reliability.

Oath or Affirmation

As stated in the text of the Fourth Amendment, search warrants and arrest warrants must also be supported by an oath or affirmation from the law enforcement official seeking the warrant. In Franks v. Delaware (1978), the Supreme Court held that an oath or affirmation of probable cause is presumptively valid. Yet an oath or affirmation will not stand if a defendant makes a preliminary showing that a false statement was included in the affidavit, the affiant knowingly made the false statement or made the false statement with reckless disregard for the truth, and the false statement was essential to a finding of probable cause. If a defendant can establish these elements, the oath or affirmation at issue is void, as is the warrant that the oath or affirmation supports.

Neutral and Detached Third Party

The Supreme Court in Johnson v. United States (1948) held that a neutral and detached magistrate or judge must review an oath or affirmation of probable cause and make probable cause determinations. Though this requirement is not explicitly stated in the text of the Fourth Amendment, the Supreme Court has held that only a neutral third party can make a suitable finding of probable cause in the context of search warrants and arrest warrants. Accordingly, the Supreme Court has also held that a third party is not neutral if that party receives compensation for warrants issued, is an agent of the executive branch and not the judiciary, or is partial  as demonstrated by the facts of the case. The Supreme Court has held, however, that a nonlawyer can serve as a neutral third party for the purpose of probable cause determinations.


In addition to providing a valid oath or affirmation supporting probable cause—as determined by a neutral third party—law enforcement officials seeking a search warrant must also specify the location of the search and the items sought. As stated in the Fourth Amendment, search warrants must “particularly describe the place to be searched and the . . . things to be seized.”

In Steele v. United States (1925), the Supreme Court held that a search warrant must describe the place to be searched clearly enough that the law  enforcement  official executing  the  search warrant can identify the place to be searched with reasonable effort. The court has also held that the items to be seized in a search must be described with enough clarity that the executing law enforcement official will not seize an item not covered by the search warrant. Generally, a warrant will not support a finding of probable cause unless the items that are the target of the search are (1) the fruits of a crime, (2) an instrumentality of a crime, (3) contraband, or (4) mere evidence of criminal conduct.

The Fourth  Amendment also states  that  a warrant must “particularly describe the . . . persons to be seized.” In the context of an arrest warrant, this clause requires that the warrant adequately identify the person that is subject to arrest. As with search warrants, arrest warrants also require that law enforcement officials submit an oath or affirmation supporting probable cause, as determined by a neutral and detached third party.

Invalid Warrants

In general, evidence seized during the execution of an invalid search warrant is excluded from use in a criminal prosecution. An invalid arrest warrant, however, does not make the arrest improper. Instead, as is the case with invalid search warrants, an invalid arrest warrant makes inadmissible all evidence seized in connection with that arrest. The legal basis for the exclusion of illegally seized evidence is the “exclusionary rule.” The exclusionary rule is a judicially recognized doctrine that makes improperly seized evidence inadmissible in a criminal prosecution and other adversarial proceedings. Notably, an improper search or seizure operates to exclude all evidence seized, not simply evidence that is the target of the search. This is known as the “fruit of the poisonous tree doctrine.”

Warrant Exceptions

There are a host of situations that lawfully allow law enforcement officials to conduct warrantless searches and arrests. Many such situations involve exigent circumstances. For example,  in Minnesota v. Olsen (1990), the Supreme Court held that a warrantless search of a home is proper if (1) law enforcement is in hot pursuit of a felon, (2) there is imminent destruction of evidence, (3) there is the need to prevent escape, or (4) there is a risk of harm to law enforcement personnel. Given certain parameters, law enforcement personnel may also conduct warrantless searches under the following circumstances: (1) an incident to a lawful arrest, (2) during an automobile stop, (3) when evidence is in plain view, (4) during an inventory of an impounded vehicle, (5) when the subject of the search is a parolee, (6) when the subject of the search gives consent, (7) if reasonable suspicion exists that the subject of a search is carrying a weapon, (8) if an automobile is in close proximity to an international border, and (9) if special needs exist, as in the case of public school lockers.

Warrantless arrests are also permitted under certain circumstances. For instance, in almost all jurisdictions law enforcement may make a warrantless arrest if there exists probable cause that a suspect committed or is in the act of committing a felony. An arrest for a misdemeanor or a lower-level crime, however, requires an arrest warrant unless the crime occurs in the presence of law enforcement personnel. In sum,  there are a myriad of instances in which warrantless searches and arrests are permitted. This has led some commentators to note that Fourth Amendment jurisprudence is a study of the exceptions rather than the rules.

The Warrant Debate

As law professor  Joshua Dressler explains,  the Fourth Amendment is composed of two clauses: the reasonableness clause and the warrant clause. These clauses, and their interaction, have been the source of spirited debate. Some constitutional scholars argue that the warrant clause defines the reasonableness clause. Under this interpretation, reasonableness is impossible absent a warrant. Conversely,  some constitutional scholars  argue that the reasonableness clause and the warrant clause are independent.

This view holds that searches must only be reasonable and  that  the warrant clause simply informs the reader when a warrant per se is unreasonable (i.e., without probable cause, improper oath or affirmation, not particular). Proponents of warrants argue that the Fourth Amendment is meant  to prevent  overreaching by law enforcement, not to redress such grievances. Those who argue that warrants are not a requirement suggest that the Fourth Amendment is meant  to eliminate  the practice  of general warrants and does not require a warrant in all cases. The Supreme Court, over time, seems to have taken both positions, requiring warrants in many instances while carving out exceptions to warrants in many others. These rulings have left lawyers, scholars, and commentators to engage in a vociferous debate about the importance of warrants and their applicability.


  1. Aguilar v. Texas, 378 U.S. 108 (1964).
  2. Dressler, J. and Alan C. Michaels. Investigation. Vol. 1 of Understanding Criminal Procedure. 6th ed. New Providence, NJ: LexisNexis, 2013.
  3. Franks v. Delaware, 438 U.S. 154 (1978).
  4. Illinois v. Gates, 462 U.S. 213 (1983).
  5. Johnson v. United States, 333 U.S. 10 (1948).
  6. LaFave, Wayne R. “The Fourth Amendment Today: A Bicentennial Appraisal.” Villanova Law Review, v.32 (1987).
  7. Minnesota v. Olsen, 495 U.S. 91 (1990).
  8. Saltzburg, Stephen A., et al. Basic Criminal Procedure. 3d ed. St. Paul, MN: West Group, 2003.
  9. Spinelli v. United States, 393 U.S. 410 (1969).
  10. Steele v. United States, 267 U.S. 498 (1925).

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